The Trademark Rush Continues: HARBOWL and KAEPERNICK ….
The upcoming Super Bowl, pitting San Francisco 49ers Head Coach Jim Harbaugh against his older brother, Baltimore Ravens Head Coach John Harbaugh, has been dubbed “Harbowl” by some. An individual in Rockville, Maryland is attempting to take this name to a new level, by filing a federal trademark application for use of the mark “HarBowl” on athletic apparel.
Last year, the National Football League (“NFL”) requested extensions of time to oppose an Indiana resident’s application for HARBOWL for hats and t-shirts. According to an ESPN.com article, the NFL wrote to this applicant, Roy Fox, expressing concern that his use of HARBOWL would be confusingly similar to its iconic SUPERBOWL trademark. Fox ultimately abandoned his application.
Do the Harbaugh Brothers have any say in all this? Federal trademark applications are scrutinized by the US Patent and Trademark Office (“PTO”) to determine whether a proposed mark meets certain statutory requirements to merit a trademark registration. In particular here, Section 2(a) of the Lanham Act examines whether a mark falsely suggests a connection with another person who is not the applicant. See 15 U.S.C. § 1052. This provision might provide the Harbaugh Brothers with some leverage, particularly if they can (or choose to) demonstrate that consumers confuse the source of the HARBOWL athletic apparel with them.
In a less contentious situation, on January 14, 2013, 49ers sophomore star quarterback, Colin Kaepernick, filed six applications, including for use of the mark COLIN KAEPERNICK and KAEPERNICK7 for use on clothing. These marks will undergo the same PTO scrutiny as any other application, but Section 2(a) (and Section 2(c), which prevents a mark identifying a living person, unless that person consented in writing to the mark) will not bar the marks from registration since Kaepernick had these filed on his own behalf.